Non-Immigrant Visas (other than Es, Ls and H-1B)

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In a continuation of its effort to encourage eligible immigrants to become U.S. citizens, the Obama administration is proposing adjustments to the immigration benefit fee schedule that would raise the cost of some benefits but reduce naturalization fees for certain low-income immigrants.

The Department of Homeland Security (DHS) released its proposed changes to the U.S. Citizenship and Immigration Services (USCIS) Fee Schedule on May 4, 2016, affecting its fees for services.  The proposed rule has been published in the Federal Register (81 FR 26904, 5/4/16) and is open for comment. Comments are due by July 5, 2016. The proposed changes are likely to go into effect this fall.

According to USCIS, it conducted a comprehensive fee review, after refining its cost accounting process, and determined that current fees do not recover the full costs of the services it provides.  Accordingly, it has stated that adjustment to the fee schedule is necessary to fully recover its costs for services and to maintain adequate service levels.  DHS proposes to increase USCIS fees by a weighted average of 21 percent and add one new fee.  In addition, DHS proposes to clarify that persons filing a benefit request may be required to appear for biometrics services or an interview and pay the biometrics services fee, and make a number of other changes.  USCIS last adjusted its fee schedule in 2010.

This chart summarizes the proposed changes.  The range of fee changes varies, for example, increasing by $45 for an application for naturalization and by $195 for an application for a fiancé visa. The rules also include a new fee of $3,035 to recover the full cost of processing the Employment Based Immigrant Visa, Fifth Preference (EB-5) Annual Certification of Regional Center, Form I-924A.  In addition, the DHS proposal would clarify that people who apply for a benefit may be required to appear for biometrics services or an interview and to pay the biometrics services fee, among other changes

Largely exempt from the increases, however, are low income immigrants who wish to become U.S. citizens.  Under the proposed rule, “DHS would charge a reduced fee of $320 for naturalization applicants with family income greater than 150 percent and not more than 200 percent of the Federal Poverty Guidelines.”

“DHS is proposing this change to increase access to United States citizenship,” the proposed rule explains.  The allowance effectively cuts in half the current cost of naturalization — $680, including the $85 biometric fee for these individuals while seeking an additional $45 increase in the cost of naturalization applications for those immigrants who can afford it.

Rep. Luis V. Gutiérrez (D-IL), who has been promoting naturalization and voter registration across the country as a means for immigrants to “Stand Up to Hate,” cheered the rule.  “Right now, a lot of immigrants face a difficult choice: pay $700 or so for the chance to take all the tests and apply for citizenship, or pay $450 to renew a green-card for five years,” Gutiérrez said in a statement.

“Now, the math is much better,” he continued. “You can apply for citizenship and a fee waiver and become an American citizen – with all the rights, duties and honor of citizenship – for a more attainable price or maybe even for free.  The new calculation is going to mean that millions of those who are already eligible can finally take the step and apply for citizenship.”

Applicants can apply for a fee waiver if their income is below or 150 percent of the poverty line, they are receiving a means-tested benefit, or they are experiencing “financial hardship.”

In recent years the Obama administration has put an emphasis on encouraging the estimated 8.8 million eligible legal permanent residents in the U.S. to naturalize and become citizens. Immigration activists, like Gutiérrez, have also embarked on campaigns to help immigrants naturalize and register to vote in a bid to influence the upcoming 2016 election.

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Alka Bahal is a Partner and the Co-Chair of the Corporate Immigration Practice of Fox Rothschild LLP. Alka is situated in Fox Rothschild’s Roseland, New Jersey office though she practices throughout the United States and at Consulates worldwide. You can reach Alka at (973) 994-7800, or abahal@foxrothschild.com.

USCIS has been working on mitigating the impact caused by the processing delay on I-129 petitions. In addition to transferring cases from Vermont Service Center to other Service Centers to balance caseloads, USCIS recently began allowing petitioners who filed Form I-129 requesting an extension of status or change of employer to contact USCIS after the petition has been pending for 210 days or more for an inquiry based on the petition being outside of normal processing time.

Petitioners or the legal representative of record may submit an inquiry by calling the National Customer Service Center at 1-800-375-5283 (TDD for deaf and hard of hearing: 1-800-767-1833). When making an inquiry, be prepared to provide the receipt number and specify that the case has been pending for 210 days or more.

On January 15, 2016, the Department of Homeland Security (DHS) amended its regulations to improve the programs serving the H-1B1, E-3 and CW-1 nonimmigrant classifications and the EB-1 immigrant classification, and remove unnecessary hurdles that place such workers at a disadvantage when compared to similarly situated workers in other visa classifications.

This final rule, effective on Feb. 16, revises regulations affecting highly skilled workers in the nonimmigrant classifications for specialty occupations from Chile, Singapore (H-1B1) and Australia (E-3); the immigrant classification for employment-based first preference (EB-1) outstanding professors and researchers; and nonimmigrant workers in the Commonwealth of the Northern Mariana Islands (CNMI)-Only Transitional Worker (CW-1) classification.

Specifically, this final rule amends DHS regulations as described below:

  • DHS is authorizing continued employment with the same employer for up to 240 days for H-1B1 and principal E-3 nonimmigrants whose status has expired while their employer’s timely filed extension of stay request remains pending.
  • DHS is providing this same continued employment authorization for CW-1 nonimmigrants whose status has expired while their employer’s timely filed Form I-129CW, Petition for a CNMI-Only Nonimmigrant Transitional Worker, request for an extension of stay remains pending.
    • The prior “240 Day Rule” authorized by DHS permits an H-1B nonimmigrant worker to continue to work with same employer for up to 240 days beyond the date of expiration on the visa, so long as an extension of stay has been filed prior to the expiration date (i.e. timely filed).
  • DHS is including H-1B1 and principal E-3 classifications in the list of classes of foreign nationals authorized for employment incident to status with a specific employer. This means that H-1B1 and principal E-3 nonimmigrants are allowed to work for the sponsoring employer without having to separately apply for employment authorization.
  • Existing regulations on the filing procedures for extensions of stay and change of status requests now include principal E-3 and H-1B1 nonimmigrant classifications.
  • Employers petitioning for EB-1 outstanding professors and researchers may now submit initial evidence comparable to the other forms of evidence already listed in 8 CFR 204.5(i)(3)(i), much like certain employment-based immigrant categories that already allow for submission of comparable evidence.

As a result of this regulatory change, employers will be able to reverify affected workers on Form I-9 without the need to wait for an approval of the extension petition.

What is the effective date of the new rule?

The amended regulation took effect on February 16, 2016.

What has changed, and who is affected?

The regulations were amended to add H-1B1 and principal E-3 nonimmigrants to the list of “aliens authorized for employment with a specific employer incident to status” and 8 CFR §274a.12(b)(20) was amended to add H-1B1, E-3, and CW-1 to the list of nonimmigrant visa classifications that are eligible for an automatic 240-day extension of employment authorization where the nonimmigrant’s period of authorized stay has expired but where a timely application for an extension of stay has been filed. Prior to this change, the regulation only applied to A-3, E-1, E-2, G-5, H-1B, H-2A, H-2B, H-3, I, J-1, L-1, O-1, O-2, P-1, P-2, P-3, R-1, and TN nonimmigrants.

Does this change apply to petitions pending on February 16, 2016, or only to new filings on or after that date?

Neither the preamble nor the text of the final rule provide guidance as to whether the 240-day extension applies to E-3, H-1B1, or CW-1 extension petitions filed prior to February 16, 2016 but remain pending on the effective date.

How should an employer annotate and reverify Form I-9 for an H-1B1, E-3, or CW-1 employee who wishes to rely on the 240-day extension rule?

On February 23, 2016, USCIS posted the following guidance on the I-9 Central homepage:

If an employer has timely filed an extension of stay for its H-1B1, E-3 or CW-1 nonimmigrant employee, the employer should write “240-Day Ext” and the date the employer submitted the Form I-129, Petition for a Nonimmigrant Worker, or Form I-129CW petition to USCIS in Section 2.  The employer must reverify the employee’s employment authorization in Section 3 once a decision is received on the request for an extension of stay or by the end of the 240-day period, whichever comes first.

This is consistent with general guidance on the 240-day rule contained in the April 30, 2013, version of the M-274 Handbook for Employers. The M-274 further advises employers to retain proof of timely filing of the extension with USCIS. This includes a copy of the I-129, proof of payment, proof of mailing, and/or the receipt notice from USCIS. Once the extension is approved, the employer should “Enter the document title, number and expiration date listed on the notice in Section 3 of Form I-9.”

This final rule does not impose any additional costs on employers, workers or any governmental entity. Further, changing the employment authorization regulations for H-1B1 and E-3 nonimmigrants makes them consistent with other similarly situated nonimmigrant worker classifications and minimizes the potential of employment disruptions for U.S. employers of H-1B1, E-3 and CW-1 nonimmigrant workers. Additionally, DHS expects that this change will help U.S. employers recruit EB-1 outstanding professors and researchers by expanding the range of evidence that U.S. employers may provide to support their petitions. DHS states “Attracting and retaining highly skilled workers is critical to sustaining our Nation’s global competitiveness.  By attracting the best and brightest from around the world, the United States can harness their talents, skills, and ideas to help the U.S. economy grow.”

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Alka Bahal is a Partner and the Co-Chair of the Corporate Immigration Practice of Fox Rothschild LLP. Alka is situated in Fox Rothschild’s Roseland, New Jersey office though she practices throughout the United States and at Consulates worldwide. You can reach Alka at (973) 994-7800, or abahal@foxrothschild.com.

As many are aware, H-1B nonimmigrant visa petition for FY 2017 may be filed starting April 1, 2016. For FY 2016, USCIS received approximately 233,000 cap subject petitions during the first five business days beginning April 1, 2016. This year, it is expected that more people will apply for H-1B than the number available (annual quota of 65,000 regular cap petitions and 20,000 advanced degree cap petitions). Per current regulation, if USCIS receives a sufficient number of petitions to reach the numerical limit during the first five business days in April, USCIS will conduct a random selection “lottery” to determine the petitions that will be accepted for processing. If there is a lottery for 2017, as expected based on the last year’s number, USCIS will make an announcement. Accordingly, the H-1B cap petitions must be filed and received by USCIS by April 7, 2016 in order to get a chance to be entered into the lottery processing.

Here are the answers to two common questions on the H-1B Cap filing process we normally encounter:

Q: Will Premium Processing increase the change of making the H-1B quota?

No. Filing the H-1B cap petition with premium processing will not increase the chances being selected in the lottery. Due to the high volume of filing, USCIS usually delays the starting date of the 15-day premium processing. For FY 2016, premium processing began on April 27, 2015 even the case was filed in the first five business days. However, one benefit of premium processing filing is that the petitioner and beneficiary will get the receipt notice faster than the cases which are filed under regular processing. This information may be helpful for the beneficiaries whose OPT will expire in April as they will be able to determine their cap-gap eligibility and continued working authorization.

Q: Can F-1 student remain in the US if his or her F-1 status expires before 10/1/2016?

Under the cap-gap rule, F-1 students whose OPT was valid at the time of filing the H-1B petition, but for whom the OPT will expire before October 1, will remain in valid status and can continue to stay and work through September 30 when the petition is pending or if it is approved. However, for the students whose OPT was expired and subsequently was in a valid grace period at the time the H-1B cap petition was filed, he/she will receive an automatic extension of stay until September 30 when the petition is pending or if it is approved. However, he/she will not receive the working authorization during this period.

On August 12, 2015, the US District Court for the District of Columbia held that the 2008 STEM OPT extension rule, including the cap-gap rule was invalid, but stayed vacatur of the rule until February 12, 2016. On January 23, 2016, the District Court extended the vacatur until May 10, 2016. If a final rule is published before May 10, 2016, the cap-gap provision should remain valid without interruption.

Due to the time is critical in H-1B cap petition filing, if you have an employee who requires an H-1B petition in order to remain employed, please contact Fox Rothschild immediately to allow sufficient time to prepare the H-1B visa petition and meet the filing deadline.

If Fox Rothschild is assisting you with the filing of an H-1B petition subject to the cap, we will automatically notify you upon the filing of the petition and upon its acceptance for processing (i.e., selection in the lottery) or rejection.

As many of you are aware, the processing of H-1B extensions at both USCIS’ California Service Center (CSC) and Vermont Service Center (VSC) continues to be significantly delayed. Currently, the reported processing times for H-1B extensions at both service centers is mid-June 2015. This extreme delay is causing extraordinary hardship to affected employers and employees as the many pending petitions face the expiration of the automatic 240-day extension of continued status and employment authorization 8 C.F.R § 274a.12(b)(20).

American Immigration Lawyer Association (AILA) has been following up this issue with USCIS Service Center Operations (SCOPS). SCOPS has stated that “it is aware of the issue and is working closely with service centers to work through the backlog.” As to the reasons for the backlog, SCOPS reported a marked increase in H-1B filings, including Simeo filings, and noted that there has been an increase in premium processing petitions as well. SCOPS promised an update on its progress during next month’s call with AILA, which is scheduled for March 9, 2016. In the meantime, attorneys and employers should be cautious about the expiration of 240-day employment authorization and ensure that employees do not work without authorization.

On December 18, 2015, President Obama signed The Consolidated Appropriations Act, 2016 (Public Law 114-113) into law, which increased fees for certain H-1B and L-1 petitioners. This law effectively reinstates PL 111-230, which sunset on Sept. 30, 2014, but increases the applicable fees.  According to the new law, H-1B visa petitioners who employ 50 or more employees in the United States, where more than 50 percent of those employees are in H-1B or L (including L-1A and L-1B) nonimmigrant status, must pay an additional fee of $4,000 for the first H-1B petition it files for an employee and $4,500 for the first L-1A and L-1B petition it files.  These new fees apply to all filings postmarked on or after December 18, 2015.

The fee only apply to certain H-1B and L-1/B Petitions, as follows:

  • Initially to grant status to a nonimmigrant described in subparagraph (H)(i)(b) or (L) of section 101(a)(15) of the Immigration and Nationality Act; or
  • To obtain authorization for a nonimmigrant in such status to change employers.

This fee DOES NOT apply to extension requests filed by the same petitioner for the same employee.

This fee is in addition to the form filing fee fee, Fraud Prevention and Detection Fee, American Competitiveness and Workforce Improvement Act of 1998 fee (when required), and the Premium Processing fee, if elected.

On January 13, 2015, USCIS sent out the web alert notifying the stakeholder that USCIS was “in the process of revising Form I-129, Petition for a Nonimmigrant Worker, and Form I-129S, Nonimmigrant Petition Based on Blanket L Petition, to reflect the provisions of Public Law 114-113. Petitioners should continue to complete Item Numbers 1.d. and 1.d.1 of Section 1 of the H-1B and H-1B1 Data Collection and Filing Fee Exemption Supplement (Page 19 of Form I-129) and Item Numbers 4.a. and 4.b. of the L Classification Supplement (Page 22 of Form I-129).”

Petitioners and the attorneys should be on alert that USCIS may begin rejecting petitions received on or after Feb. 11, 2016 that do not complete Item Numbers 1.d. and 1.d.1 of Section 1 of the H-1B and H-1B1 Data Collection and Filing Fee Exemption Supplement and Item Numbers 4.a. and 4.b. of the L Classification Supplement, or include the additional Public Law 114-113 fee, if applicable.  The additional fee required under PL 114-113 will remain in effect until September 30, 2025.

H-1B and L-1 employers who were subject to Public Law 111-230 and required to pay an additional filing fee of either $2,000 (H-1B) or $2,250 (L-1) do not need to pay these fees for petitions filed on or after Oct. 1, 2015. This additional fee only applied to certain companies with large numbers of H1B and/or L-1 workers and expired on Sept. 30, 2015 because the law that mandated them, Public Law 111-347, enacted on Jan. 2, 2011 (amending the original law, Public Law 111-230, enacted on Aug. 13, 2010), extended the fees only through Sept. 30, 2015.

The additional fees imposed under this law dramatically increased the cost of filing H-1B and L-1 petitions for those companies with more than 50 employees in the United States, where at least 50 percent of the employees were in H1B or L-1 status.

All other H-1B and L-1 fees, including the Base fee, Fraud Prevention and Detection Fee, and American Competitiveness and Workforce Improvement Act of 1998 (ACWIA) Fee, when applicable, are still required.  Petitions with incorrect fees may be rejected.  Petitioners are reminded that USCIS prefers separate checks for each filing fee.

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Alka Bahal is a Partner and the Co-Chair of the Corporate Immigration Practice of Fox Rothschild LLP. Alka is situated in Fox Rothschild’s Roseland, New Jersey office though she practices throughout the United States and at Consulates worldwide. You can reach Alka at (973) 994-7800, or abahal@foxrothschild.com.

On September 30, 2015, President Obama signed a Continuing Resolution to extend funding of the US government through December 11, 2015, and temporarily avoid a government shutdown.  See http://www.wsj.com/articles/senate-passes-government-funding-bill-prior-to-midnight-deadline-1443623598.  The Continuing Resolution contained extensions for several important immigration programs including:

  • EB-5 Regional Centers
  • Conrad 30 J-1 Physician Waivers
  • Nonminister Religious Workers, and
  • E-Verify.

These programs were continued unchanged until December 11, 2015.

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Ms. Wadhwani is a partner in the Immigration Practice Group at Fox Rothschild LLP.  She may be reached at cwadhwani@foxrothschild.com.

If Congress should fail to pass a FY2016 budget or Continuing Resolution before October 1, 2015, the government, including the Department of Labor will shut down (again; previously occurred in October 2013). This will directly affect the Department of Labor’s Office of Foreign Labor Certification (OFLC) since its functions are not “excepted” from a shutdown and its employees would be placed in furlough status should a lapse in appropriated funds occur. Consequently, in the event of a government shutdown, OFLC will not accept applications or related materials (such as audit responses) as of October 1, nor will it process those already received, including Labor Condition Applications, Applications for Prevailing Wage Determination, Applications for Temporary Employment Certification (H-2A/H-2B), or Applications for Permanent Employment Certification. Furthermore, DOL’s online systems (iCERT and PERM) will not be operational and will not accept PERM, LCA, or prevailing wage applications, and authorized users will not be able to access their online accounts.  While DOL made accommodations in 2013 to accept applications that were affected by the shutdown, there is no way to be certain it will do so again.

We, along with you, are hopeful that Congress will take the steps necessary to prevent another government shutdown, but you should be aware that this may directly impact nonimmigrant and visa processing.

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Alka Bahal is a Partner and the Co-Chair of the Corporate Immigration Practice of Fox Rothschild LLP.  Alka is situated in Fox Rothschild’s Roseland, New Jersey office though she practices throughout the United States and at Consulates worldwide. You can reach Alka at (973) 994-7800, or abahal@foxrothschild.com.

If you’re waiting for your employment card or greencard to be issued, your wait may be slightly longer than usual by a few weeks. 

AILA (the American Immigration Lawyers Association) provided notice that there have been reports of delayed issuance of employment cards (EADs) and of US Permanent Residence cards.  The delay is not in the adjudication period, but rather in the amount of time between the date of an approval and the date when USCIS issues the EAD or greencard to the beneficiary. 

The delay is said to result from maintenance measures at one of the card-production facilities, which in turn necessitated the temporary transfer of card production processes to a different facility.  The timings are expected to return to normal sometime in the second half of September.

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Ms. Wadhwani is a partner in the Immigration Practice Group at Fox Rothschild LLP.  She may be reached at cwadhwani@foxrothschild.com.